Obama administration makes a desperate play to save transgender bathrooms

The U.S. Department of Justice has asked a federal appeals court to overturn a judge’s ruling that suspended enforcement of the administration’s order allowing transgender students and workers to use the bathroom of their choice.

U.S. District Judge Reed O’Connor, a George W. Bush appointee, blocked enforcement of the order in August.

Lawyers for the administration asked the 5th U.S. Circuit Court of Appeals to throw out O’Connor’s ruling, arguing the courts do not have the power to review the government’s order. They also argue O’Connor’s ruling was too broad, as it applied to the entire country, instead of the states challenging the order.

The administration sent guidance to school districts across the country in May, advising them to allow trans students to use the bathroom consistent with their gender identity.

“A school’s failure to treat students consistent with their gender identity may create or contribute to a hostile environment in violation of Title IX,” the letter said, in reference to the federal law banning gender discrimination in education.

The agencies argued that the guidelines they issued only reflect their interpretation of Title IX, and are not orders bearing the full force of law. They further contend the guidelines were issued because of ambiguities in Title IX, since the law does not address how a school should accommodate a transgender student. As a consequence, they argued the court must defer to their interpretation of the law, since a court may not overturn an agency’s interpretation so long as it is “reasonable.”

A coalition of a dozen states, led by Texas, accused the agencies of playing a “regulatory shell game” by issuing the guidelines by means of regulatory “dark matter,” a deluge of agency directives, notices, memoranda, guidance documents, and even blog posts that effectively create new policy without congressional legislation or Administrative Procedure Act (APA) protocols.

The states claim that this strategy allows agencies to evade review by the courts and achieve their policy objectives — because the guidance stems from so-called “dark matter,” it technically lacks the force of law and therefore cannot be reviewed by the courts. Nonetheless, districts that do not abide by the guidance are targeted for punishment by the agencies, ensuring district compliance with the new agency “rules.”

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